Header Graphic




M'Culloch v. Maryland     


“Necessary and Proper”—Jefferson-Hamilton Duel—Federalism


The story of the Articles of Confederation is well known.  Bluntly put, they didn’t work. 


Not only was there no provision for a chief executive, but trade barriers erected by some states against others threatened to kill the new nation in its cradle.


The Constitution of the United States of America was designed to fix those problems, and others, by creating a federal union.


The preamble states the Constitution’s goal as being to “form a more perfect Union.” 


Article I provides that there shall be state-based elections for members of the federal congress, that “The Congress shall have Power To . . . regulate Commerce . . . among the several States,” and “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the [federal] Government of the United States, or in any Department or Officer thereof.”


Article II provides for state-appointed electors to choose the president and vice president of the United States.


Article IV provides that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State,” that “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States,” that alleged criminals can be extradited from one state to another, that new states may be admitted “into this Union,” and that “The United States [the federal government] shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and . . . domestic violence.”


Article V provides for state participation in amendment of the federal Constitution.


Article VI provides that “This Constitution, and the Laws of the United States [the federal government] which shall be made in Pursuance thereof; and all Treaties . . . shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”


Article VII provides for state ratification of the federal Constitution.


And lest there have been any question that the new nation was a federal republic consisting of a national government made up of constituent states, each of which possessed its own powers, the Tenth Amendment provides that “The powers not delegated to the United States [the federal government] by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.”


What are we to make of all these provisions?


As I wrote  in The Supreme Court Opinions of Clarence Thomas (1991 – 2006): A Conservative's Perspective,


The Constitution of the United (i.e., combined into one federal Union) States expressly affirms the existence of reserved powers in the states and in the people respectively.  Just as the first nine amendments are an assurance that individual rights were to be protected from the newly formed federal government, the Tenth Amendment is a guarantee that states and their citizens will retain their powers as against the national government—except as to powers expressly granted in the Constitution to the federal government, or expressly denied to the states.


Federalism matters.


Former Attorney General Edwin Meese III has written that “[t]he institutional design [of the Constitution] was to divide sovereignty between two different levels of political entities, the nation and the states.  This would prevent an unhealthy concentration of power in a single government.  It would provide, as Madison said in The Federalist No.  51, a ‘double security . . . to the rights of the people.’  Federalism, along with separation of powers, the Framers thought, would be the basic principled matrix of American constitutional liberty.  ‘The different governments,’ Madison concluded, ‘will controul each other; at the same time that each will be controlled by itself’.”


It is believed by some constitutional law scholars that the most important opinion of the scores written by John Marshall during his more than thirty years as Chief Justice was M'Culloch v. Maryland, the first case to rule on the meaning of the Necessary and Proper Clause.


At the Constitutional Convention of 1787, the delegates were faced with the task of providing the government-to-be with specifically enumerated delegated powers.  As to those of Congress, Article I, Section 8, lists dozens.  For example, Clause 8 delegates to Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”


All well and good.  But how was Congress supposed to accomplish that?  Indeed, how was Congress supposed to organize the new government and implement the many tasks delegated to it?


The question was of crucial importance because under the earlier, no longer acceptable, Articles of Confederation, it had been provided that “Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation
expressly delegated to the United States, in Congress assembled."


The Constitutional Convention’s Committee on Detail considered the question.  One idea was simply to vest Congress with the power to “organize the government.”  Another was what became the Necessary and Proper Clause.  Congress was empowered:


To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the [federal] Government of the United States, or in any Department or Officer thereof.


 These 39 words made a lot of people very unhappy even then.  They still do today.


In the heated controversy over ratification of the Constitution, there was vociferous opposition to the clause, mainly because it was seen as negating the principle of enumerated powers which conceptually underlay the Constitution generally and Article I, Section 8 in particular. 


Certainly the Necessary and Proper Clause was needed to enable the new government to get itself organized.  That’s why among the first things the first Congress did was to establish the structure and staffing of the federal judicial system.


There were those Federalists, however, who read the Necessary and Proper Clause much more broadly, among them co-author of the pro-ratification essays called The Federalist, Alexander Hamilton.


Accordingly, as Secretary of the Treasury, in 1790 Hamilton lobbied Congress to charter a national bank, concededly not an enumerated power of Congress under Article I, Section 8, of the Constitution, nor indisputably a “let’s get organized” power such as building post offices.  Hamilton wanted the bank for the purpose of dealing with the nation’s monetary and economic systems.


Hamilton’s bill passed Congress in February 1791, but President Washington had reservations about its constitutionality.  He asked Hamilton, Jefferson, and Randolph to provide written opinions.  Hamilton, of course, was for the bank.  Jefferson was opposed (as was Randolph). 


Predictably, Hamilton argued that “every power vested in a government is in its nature sovereign, and includes, by force of the term a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution, or not immoral or not contrary to the essential ends of political society. . . .”  ( Emphasis in original.)


Jefferson’s opposition is essentialized in this passage from his opinion: “I consider the foundation of the Constitution as laid on this ground—that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people . . . .  To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”  (Emphasis in original.) 


Hamilton prevailed.  The bank was chartered.  The charter lapsed twenty years later, but was not renewed.


However, in 1816 Congress chartered a second Bank of the United States.  It established branches in several states, and thus the groundwork was laid for one of the worst Supreme Court decisions, M'Culloch v. Maryland.


In 1818, the State of Maryland enacted a law that taxed the notes of all banks that were not chartered by the state—i.e., the second Bank of the United States.  The Maryland branch refused to pay the tax, the state sued, and eventually the case ended up in the Supreme Court of the United States.


Ostensibly about the tax, the threshold issue for the Court was really whether the Congressional legislation creating the bank was constitutional.  That in turn depended on whether, under Article I, Section 8, of the Constitution Congress possessed the power to charter the bank.  Indeed, the second paragraph of Chief Justice Marshall’s opinion in M’Culloch begins: “The first question made in the cause [case] is—has congress power to incorporate a bank?


Marshall began his opinion by noting that there was a legislative precedent for the bank—the first Bank of the United States—though of course that said nothing about the constitutionality of the second bank. 


Next, after some irrelevant musings about the Constitution’s origins, Marshall recognized that everyone agreed the government is “one of enumerated powers.”  If one was unaware Marshall believed in a strong central government, it might have seemed that the bank legislation was on its way to being held unconstitutional.  But that was not to be.  Far from it.


After considerable discursiveness, Marshall finally got to the Necessary and Proper Clause which, after all, was what the case was really about.  Focusing on the word “necessary,” Marshall opined that:


If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. * * * The word ‘necessary’ . . .  has not a fixed character, peculiar to itself.  It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed by these several phrases.


 Marshall followed this linguistic analysis with a bit of mind reading, attributing to the Framers an intent to provide in the Necessary and Proper Clause a roaming commission in Congress to legislate on virtually any subject it chose.  Although paying lip service to the principle that “the powers of the government are limited, and that its limits are not to be transcended,” Marshall issued one statement that more than any other synthesized his views of the Necessary and Proper Clause:


Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.


There is much to criticize in John Marshall’s opinion for the Court in M'Culloch v. Maryland:  His unabashed allegiance to federalist principles, his rambling detours into constitutional history, his use of non sequiturs, his begging of questions, his tortured linguistic parsing of “necessary,” his failure to satisfactorily come to grips with the Necessary and Proper Clause’s other requirement, “proper.” 


But the worst aspect of M'Culloch is Marshall’s too-slick reversal of the Necessary and Proper Clause’s meaning. 


Article I, Section 8, contains the bulk of Congress’s delegated, limited powers.  The Necessary and Proper Clause allows Congress to implement those powers.  Yet—in construing what he might have more honestly called the “Convenient, or Useful” Clause—Marshall turned the tables.  No longer was the scope of Congress’s power that which was expressly delegated to Congress in Article I, Section 8, via the people, to their states, to the national government.  Oh no! Now, the virtually, if not actually, unlimited scope of that power was to be whatever was “not prohibited” to Congress by the Constitution.


And what does the Constitution expressly prohibit to Congress?


Not much.


Importation of slaves, and a tax on them of more than $10 each.  Enactment of bills of attainder and ex post facto laws.  Certain kinds of capitation, direct, and export taxes.  Port preferences and withdrawal of money from the treasury without appropriate legislative approval.  And, lest we forget, the granting of titles of nobility.


Thanks to Chief Justice John Marshall’s M'Culloch opinion in 1819, virtually every conceivable subject has since been grist for Congress’s Article I mill—with severe consequences for both republican institutions and individual rights. 


And countless later Supreme Court cases have relied heavily on M'Culloch v. Maryland to justify approval of almost unlimited Congressional power (especially when exercised under the Interstate Commerce Clause).